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Lessons from Analogising Natural and Corporate Persons in the Criminal Law

29 May 2018, 4:00 pm–6:00 pm

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Lessons from Analogising Natural and Corporate Persons in the Criminal Law

Event Information

Open to

All

Organiser

UCL Laws

Location

UCL School of Public Policy, The Council Room, 29-30 Tavistock Square, London WC1H 9QU

In light of the cancellation of the session with Clare Chambers, we are excited to bring you the following event in its place:

Speaker:

Dr Mark DSouza (UCL Laws)

Series: 

Institute of Law, Political Science and Philosophy

About the paper:

In her review of Celia Wells’ landmark monograph Corporations and Criminal Responsibility, Richardson concludes by observing that, “[u]nderlying all the arguments and analysis, however, as Wells herself admits, lie two troubling questions: why extend legal penalties [to corporations] at all? and why punish a fictional legal entity [such as a corporation]? Sadly Wells never provides truly satisfactory answers.” My intuition is that at the heart of a plausible answer to these profound questions is what Grant Lamond calls the criminal law’s ‘crucial social dimension’. Lamond explains that a very plausible account of what a crime is focuses on the fact that “[a] successful prosecution does not simply result in a defendant being held liable for the breach of a legal prohibition—instead she is convicted of committing a crime—she is found guilty of the charge against her. These are socially expressive terms. The criminal law serves an important condemnatory function in social life—it marks out some behaviour as especially reprehensible, so that the machinery of the state needs to be mobilized against it.” A criminal conviction publicly condemns the defendant. It has a communicative function that civil judgments do not – it publicly recognises and labels the defendant as a criminal, with all the resonance and social meaning of the term. This communication about the defendant is addressed to both, the defendant, and the general public.

The reason we want to apply the criminal law to corporations is, I think, linked to second part of this public communicative function in particular. When a corporation is convicted, the conviction communicates to the public that the criminal justice system takes the corporation’s conduct very seriously. So seriously in fact, that it calls this sort of conduct is ‘criminal’, with all the resonance and social meaning of that term. Most, if not all, of the other negative aspects of a criminal conviction can be replicated in civil proceedings. But civil proceedings do not communicate to the public the justice system’s judgment that the corporation’s conduct was so bad, that it was what the public would recognise as ‘criminal’.

I argue that this has implications for the manner in which corporate criminal law should be structured. In particular, since the layperson’s conception of what sort of behaviour is ‘criminal’ is probably shaped by a rough and ready understanding of the criminal law as it applies to natural persons, we have good reason to ensure that the criminal rules and standards applicable to corporate trials do not stray too far from the perceived paradigm of criminal law, as applicable to natural persons. We have good reason, that is, to demand that the criminal law should (ordinarily) treat natural and corporations as being subject to the same standards, and equally disentitled to special consideration. This idea forms one of the organising principles of this paper, in which I consider normative questions about the attribution of conduct and mental states to corporations for the purposes of the criminal law.

 

About the Institute:

 

The Institute brings together political and legal theorists from LawPolitical Science and Philosophy and organises regular colloquia in terms 2 and 3.

Note that the total time will be devoted to discussion of the paper. To receive the paper, please email the UCL Laws events team a week prior to the session.